Director-General, Department of Environment and Climate Change v Gleeson; Director General, Department of Environment and Climate Change v Epacris Pty Ltd [2009] NSWLEC 42

Director-General, Department of Environment and Climate Change v Gleeson; Director General, Department of Environment and Climate Change v Epacris Pty Ltd [2009] NSWLEC 42

Because the relevant notice and subsequent conduct reasonably led the defendants to believe that compliance with the direction would protect them from prosecution, allowing the prosecution to proceed would be unjust and amount to an abuse of process; therefore, the proceedings should be permanently stayed.

Parties
Prosecutor: Director-General, Department of Environment and Climate Change; Defendant: David John Gleeson; Defendant: Epacris Pty Limited
Jurisdiction
Australia
Judgment Date
06 April 2009
Procedural Posture
Criminal Prosecution / Application for Permanent Stay of Proceedings Prior to Substantive Hearing
Outcome
permanent stay of proceedings granted
Legal Topics
Stay of Proceedings, Abuse of Process, Prosecutorial Promise, Native Vegetation, Remediation Orders
Criminal Law Environmental Law Practice and Procedure Stay of Proceedings Abuse of Process Prosecutorial Promise Native Vegetation Remediation Orders

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Parties

Director-General, Department of Environment and Climate Change

Prosecutor

David John Gleeson

Defendant

Epacris Pty Limited

Defendant

Procedural Posture

Criminal Prosecution / Application for Permanent Stay of Proceedings Prior to Substantive Hearing

Legal Issues

  1. 1 Whether the proceedings should be permanently stayed as an abuse of process due to a prosecutorial promise or representation made to the defendants
  2. 2 Whether the understanding of the defendants that there would be no prosecution upon compliance with the notice was reasonable
  3. 3 Whether the prosecution in light of the arrangements and subsequent compliance results in unfairness justifying a stay

Ratio Decidendi

Because the relevant notice and subsequent conduct reasonably led the defendants to believe that compliance with the direction would protect them from prosecution, allowing the prosecution to proceed would be unjust and amount to an abuse of process; therefore, the proceedings should be permanently stayed.

Court Disposition

permanent stay of proceedings granted

Orders

  • The proceedings in both matters (Nos. 50068 of 2005 and 50069 of 2005) are permanently stayed.
  • The question of costs is reserved.